Ballots or Briefs? In election 2004, the man with the most lawyers may win

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The Bush and Kerry campaigns are spending unprecedented millions on TV ads. But the real battle that could decide this election may be fought by the squadrons of lawyers both sides have hired to prepare Florida-style challenges to the results in any close state. Once again, America's sloppy, fraud-prone voting system could turn Election Day into an Election Month of court challenges.

"If you think of election problems as akin to forest fires, the woods are no drier than they were in 2000, but many more people have matches," says Doug Chapin, director of the nonpartisan Election Reform Information Project.

Certainly, a lot of incendiary rhetoric is being tossed around. "Don't tell us that disenfranchising a million African-Americans and stealing their votes is the best we can do in America," John Kerry told a black church audience in Indianapolis in July as he promised to deploy "SWAT teams" of 10,000 volunteer lawyers to police the polls for possible voter disenfranchisement.

The Kerry campaign has already spammed its supporters with an e-mail saying it is "considering our options should John Kerry or George Bush pursue a recount like the famous Florida ballot dispute" and soliciting funds to do so. The Federal Election Commission will hold a hearing this month on a Kerry request to use its legal and accounting funds to pay for recount expenses. Republicans are forming their own network of lawyers to guard against possible voter fraud, citing what they say has been a flood of questionable new voter registrations submitted by liberal activist groups.

Election lawsuits are already piling up. Democrats have sued in Missouri, demanding the city of St. Louis, a Democratic stronghold, be the only jurisdiction permitted to allow early voting at government offices. For the first time, a federal mandate will require that all voters be allowed to cast a provisional ballot if their names don't appear on registration lists.

In Florida, liberal groups sued to have such ballots counted even if they are cast in precincts where the voter doesn't live  even though state law disqualifies votes cast in the wrong precinct. If the number of provisional ballots exceeds the margin of victory in the presidential race, you can bet lawyers will argue that "every vote must count," regardless of eligibility. Candidates may have to hope their vote totals are beyond the "margin of litigation."

But the hottest spot for pre-election litigation this year is New Mexico, a state Al Gore carried by only 366 votes. On Monday, a Democratic judge tossed Ralph Nader off the ballot after another judge rescinded a similar order she'd issued because she'd contributed $1,000 to the Kerry campaign. Nader forces have accused Democratic Secretary of State Rebecca Vigil-Giron of railroading their man using legal pretexts that have never been applied in New Mexico.

Earlier this year, Ms. Vigil-Giron issued guidelines saying that a new state law  which mandates that voters who register without an election official present must show a photo ID at the polls  doesn't apply to registrations collected by groups like the Association of Community Organizations for Reform Now (Acorn), but only to those people who sign up to vote by mail. So far, such groups have helped collect 112,000 new registrations, or one out of nine of the state's voters.

Mary Herrera, the clerk in Bernalillo County, which includes Albuquerque, says her office has received over 3,000 suspicious registration forms. A 13-year-old boy received a voter card in the mail. Acorn organizers admitted that registration was submitted by one of their employees, who has since been fired. But in a court case this month, Acorn director Matt Henderson invoked his Fifth Amendment rights and refused to answer whether his group illegally copies voter registration cards before turning them in to election officials. Previously, he had admitted to the Albuquerque Tribune that it did so.

All this has prompted U.S. Attorney David Iglesias to form a statewide criminal task force. "Mischief is afoot and questions are lurking in the shadows," he told reporters. But Ms. Vigil-Giron, whom Mr. Iglesias named to his task force, told me that "the U.S. attorney is the last person in line who should look at vote fraud. It's seen as Big Brother getting involved and won't help anything." Citing the burden on local election officials, a local judge has declined to overrule her decree that most new voters don't have to show ID  even though he acknowledged the law is "clear" and "unambiguous."

The issue of photo ID has become symbolic of the clash of values on election standards between the two parties. Supporters say it is bizarre that 33 states don't require a photo ID to vote, at a time when one is needed to buy an airline ticket, rent a video or cash a check. A Rasmussen Research poll in June found 82% of Americans believed voters should show photo ID, including 75% of Kerry voters. But liberal groups insist that even laws that allow voters to use a paycheck or utility bill as ID discriminate against minority voters and could lead to "profiling."

When San Diego County Supervisor Bill Horn announced last week that he would petition Congress for a bill requiring photo ID, he was denounced by the local League of Women Voters. Jesse Durfee, chairman of the San Diego Democratic Party, says photo ID requirements "target specific communities and are discriminatory." He calls them "a racist mechanism." Similar charges are being hurled at supporters of a November ballot initiative in Arizona that would require proof of citizenship to register to vote and apply for welfare.

But the reason photo ID and similar laws command such broad support is that citizens instinctively realize that in a highly charged election, some people will be tempted to violate the honor system on which our election rules are based. Should "anything goes" continue to be our ballot catch phrase, the nation may wake up to a crisis even bigger than the 2000 Florida folly. Perhaps then it will demand to know why more wasn't done to fix the system before it failed again. That's why officials need to enforce whatever safeguards we have this year  and then lobby hard for better voter education and protections against fraud in the future.

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